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Fan's defamation lawsuit against Jazz, Russell Westbrook before Utah appeals court

Posted at 4:43 PM, Jun 27, 2023

SALT LAKE CITY — The Utah Court of Appeals is considering whether to reinstate a defamation lawsuit filed by a man banned for life from Utah Jazz games following a 2019 confrontation with then-Oklahoma City Thunder player Russell Westbrook.

Shane Keisel's attorney said his client lost his job, received death threats and was subjected to online abuse by a "cancel mob" following the confrontation with Westbrook at the game between the Jazz and Thunder. But it is comments Keisel made — and the reaction to it — that are at the heart of the lawsuit.

"Mr. Keisel said to sit down and ice his knees and the discourse escalated when Mr. Westbrook responded angrily that it was heat, not ice wrapped to his knees. At that point, Mr. Keisel made the comment about Mr. Westbrook’s knees that was referenced as racial in the press conference and Mr. Westbrook lashed out with the threats in response. But race was not a factor in these comments," said John Mertens, the attorney for Keisel and Jennifer Huff.

Westbrook described the comments as racial when addressing reporters following the confrontation. Then-Utah Jazz owner Gail Miller stood on the court and addressed fans at a later game, imploring them to behave better and declaring "we are not a racist community." It all prompted Keisel and Huff's defamation litigation against Westbrook and the Jazz.

A lower court judge threw out the lawsuit. On Tuesday, the Utah Court of Appeals heard arguments about whether to revive it. The three-judge panel focused on whether the remarks are subject to interpretation and are protected under the First Amendment.

"How do we know that Mr. Westbrook 'mischaracterized' or didn’t just hear something different than the rest of the witnesses did?" Judge Michele Christiansen Forster asked, making an air quote motion.

"I think that’s an excellent question and yet another reason this case should go to trial," Mertens replied.

The judges peppered Keisel's lawyer with questions about whether Westbrook and Miller's remarks were simply opinion, which can be protected speech.

"Doesn’t Mr. Westbrook have the right under the First Amendment to have an opinion about what the meaning of Mr. Keisel’s statement was?" Judge Ryan Tenney asked Mertens.

"Certainly he can have an opinion. And he can express opinions," Mertens replied.

"So once he has the First Amendment right to have an opinion, then how can it be a defamation claim?"

"The same way that any other defamation through an opinion that implies facts is a defamation claim."

Jeff Hunt, an attorney for the Utah Jazz, argued that it was opinion and there was a lot of case law protecting that in public discourse.

"Their claim is that the Jazz labeled it, characterized it, mischaracterized it allegedly as racist. That’s the heart of their claim against the Jazz and that is simply non-actionable opinion," he told the judges.

Westbrook's attorney, Matthew Lalli, argued that Keisel himself made his identity public by initially posting a video of some of the confrontation. It was different, he said, than another instance where the Utah Jazz banned a fan for making what was construed as a racist remark.

"Nobody knows his name. Why is that? There’s only one logical conclusion to that because he didn’t go on TV, he didn’t send his video out to the world so there was 15,000 hits before the game was over," Lalli told the judges. "Keisel wanted the spotlight and he got it."

The Court took the case under advisement with no timeline on when a ruling would be issued.